Supreme Court of Canada Affirms Law on Ontario Courts’ Authority over International Child Abductions
In a recent split-decision ruling in a case called F. v. N., the Supreme Court of Canada took up its first-ever chance to address the law involving a specific international child abduction scenario: Namely those cases where a parent abducts their own child from a country that is not a signatory to the relevant Hague Convention.
Importantly, the subtext of the Supreme Court’s decision appears to be that parents are not encouraged to engage in self-help measures, nor try to forum-shop for a court that is more amenable to their desired custody outcomes.
As we reported in our previous Blog on this case, the facts involved a couple who had married in Pakistan, but lived for their entire relationship in Dubai in the United Arab Emirates (UAE) with their two young children. They separated and the father started divorce proceedings in the UAE.
The mother, a dual Canadian and Pakistani citizen, took matters into her own hands: She abducted the children from UAE to Ontario in 2020 without the father’s knowledge or consent. The UAE is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
The father then applied to the Ontario court for various divorce-related remedies. He asked for an order forcing the children to be returned to him in Dubai where a full custody/access hearing could take place. However the mother challenged the Ontario court’s jurisdiction to make any such order of this type. The matter ended up before the Ontario Court of Appeal, which ultimately declined to take over jurisdiction in the case.
In a 5:4 decision, the majority of the Supreme Court dismissed the appeal. It confirmed lower court and appeal decisions, which ruled that:
- The mother had wrongfully brought the children to Canada;
- The children would not face serious harm if they were returned to the UAE, as the mother claimed; and
- It was in their best interests to have the parents resolve their custody/parenting time dispute in the UAE.
Further, the Supreme Court agreed with the appeal court’s interpretation of the Children’s Law Reform Act (CLRA), which under s. 23 allows an Ontario court to assume jurisdiction only if two tests are met: 1) the children are located in Ontario; and 2) the court is persuaded on the balance of probabilities that they would “suffer serious harm” if they were removed from there. (And the abducting parent has the onus to prove both elements).
The Supreme Court confirmed that the CLRA regime operates to discourage parents from abducting their own children and wrongfully retaining them in Ontario. For abductions from non-Hague countries specifically, Ontario courts should refrain from exercising jurisdiction except for exceptional circumstances, the Court added.
From a practical standpoint, the following principles apply:
- The second branch of the two-part test, which requires an established risk of serious harm, is child-centred, highly individualized, and invoked fact-specific questions.
- It is not enough to conclude that the child’s return would have a negative impact on him or her; a deciding judge must consider both the likelihood and the severity of the anticipated harm – including psychological harm.
- The risk flowing from separating the child from his or her primary caregiver must also be weighed, as must any unresolvable inconsistencies between the Family laws of the two countries in issue.
- The focus must be not on a general assessment of the society to which the child would be sent back, but rather on the particular circumstances of the child.
- In these kinds of cases, it is usually in the child’s best interests to have them returned promptly to the jurisdiction where they habitually live, and to which they have a closer connection.
Applying these principles to the facts at hand, the Supreme Court ruled that the trial judge’s assessment that there was no risk of serious harm was entitled to deference; there was no reason to overrule it. Nor had the Court of Appeal made any errors in subsequently affirming that decision.
Accordingly, the parents’ custody dispute should be dealt with in the UAE where the children had the closest connection.
True, the UAE would be applying Islamic family law – which is a vastly-different system than the one used in Ontario. However based on testimony by UAE Family law experts, the Supreme Court was satisfied that any custody and access issues would ultimately be decided based on the best interests of the child.
To our readers: This is a landmark ruling in the area of international child abduction cases. If you think it might apply to your situation, feel free to give our team a call.
At Russell Alexander Collaborative Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com
